Colorado Construction Corporation, B-290960, September 6, 2002

B-290960 Sep 06, 2002 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Agency's rejection of a bid submitted in response to a solicitation set-aside for Indian economic enterprises is unobjectionable where the agency reasonably questioned whether the Native American owner of the enterprise would be involved in the daily business management of the enterprise and whether the majority of the earnings from the contract would accrue to the Native American owner. Colorado Construction's bid was rejected by the agency because of its determination that Colorado Construction was not an eligible Indian economic enterprise. The IFB was issued as a total set-aside for Indian-owned and controlled concerns pursuant to the Buy Indian Act. The IFB required that bidders certify that they were at least 51 percent Indian-owned. View Decision Colorado Construction Corporation, B-290960, September 6, 2002 DIGEST Attorneys DECISION Colorado Construction Corporation protests the rejection of its bid and award of a contract to Laguna Construction Company under invitation for bids (IFB) No. RBH00020006, issued as a total set-aside for Indian-owned and controlled firms by the Bureau of Indian Affairs (BIA), Department of the Interior, for the removal and disposal of existing bridges, and construction of new bridges. Colorado Construction's bid was rejected by the agency because of its determination that Colorado Construction was not an eligible Indian economic enterprise. We deny the protest. The IFB was issued as a total set-aside for Indian-owned and controlled concerns pursuant to the Buy Indian Act, 25 U.S.C. Sec. 47 (2000). To be considered for award, the IFB required that bidders certify that they were at least 51 percent Indian-owned, that one or more of the Indian owners would be involved in daily business management of the enterprise, and that the majority of the earnings from the contract would accrue to the Indian owners. IFB at 88-89. The agency received six bids by the April 17, 2002 bid opening. Colorado Construction, which submitted the second-low bid of $1,737,800, became the apparent low eligible bidder after the low bidder declined the agency's request to extend its bid acceptance period. By letter dated June 3, the contracting officer requested that Colorado Construction submit certain information required for the assessment of the firm's responsibility. The contracting officer requested, for example, that Colorado Construction provide its articles of incorporation; principal place of business and location of equipment yard; evidence that it had the production, construction, and technical equipment and facilities necessary to complete the project or the ability to obtain them; current financial statements; and a list of past road construction experience. Agency Report (AR), Tab 6, Contracting Officer's Letter to Colorado Construction (June 3, 2002). Colorado Construction responded to the agency's request on June 14. Because of certain issues raised in Colorado Construction's response, the contracting officer requested by letter dated June 24 that Colorado Construction "submit further documentation" demonstrating its eligibility for award as an Indian-owned enterprise. AR, Tab 11, Contracting Officer's Letter to Colorado Construction (June 24, 2002). Colorado Construction responded by letter dated June 26, and after reviewing the information, the contracting officer informed Colorado Construction, by letter dated July 10, that its bid had been rejected because "[t]he documents for Colorado Construction Company provide insufficient evidence that the control and daily management of the company lies with an Indian-owned enterprise." /1/ AR, Tabs 13 & 15, Colorado Construction's Response to the Agency's Request (June 26, 2002); Contracting Officer's Letter to Colorado Construction (July 15, 2002). This protest followed. Colorado Construction argues that the agency's determination that it was ineligible for award was unreasonable. The protester points out that in response to the agency's requests it provided, among other things, evidence that the president of the firm owns 51 percent of the firm's common stock, is an enrolled member of a Native American tribe, and would serve as the superintendent for the project. The protester also notes that "[a]s majority shareholder, [the Native American president of Colorado Construction] would be entitled to a majority of the dividends, if any." Protester's Comments at 6 n.2. The Buy Indian Act, 25 U.S.C. Sec. 47, provides as follows: So far as may be practicable Indian labor shall be employed, and purchases of the products . . . of Indian industry may be made in open market in the discretion of the Secretary of the Interior.